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Defence statement released in Israeli GPL test

As we reported previously, Alexander Maryanovsky, the plaintiff in the case, first filed against Alexander Rabinovitch and IChessU in 2006. Maryanovksy alleges that the defendants engaged in bad faith negotiations because, after consulting him, the defendants used his work without pay, and that they are in violation of the GPL on several points. In addition, Maryanovsky states that screenshots of Jin on the IChessU site are violation of his copyright because "they were made by running the program in a non-licensed manner." He originally asked a permanent injunction to prevent the defendants from distributing the program, and 110,000 NIS ($25,000) in damages, 80,000 NIS ($18,000) of which are for the screenshots on the site.

Maryanovsky originally filed the suit under the short proceedings option, which according to Jonathan J. Klinger, his lawyer, is used for cases in which "there is little defence or factual disputes, and where the case is clear and cut already -- since the damages are statutory, there is no dispute on the amount to be paid."

However, since the defendants have denied almost every fact alleged by Maryanovsky, the case is now being treated in the normal manner, and a statement of defence was released a few weeks ago. This statement, written in Hebrew, was briefly published by Maryanovsky on his Web page about the case, but is now marked as "Removed per request from IChessU's lawyers." Fortunately, we were able to download a copy of the statement before it was removed.

Preliminary statements in the defence statement

Rabinovitch has outlined the defence before, both in the correspondence published on Maryanovsky's Web page about the case and in Linux.com's first story about the case. The statement of defence is broadly similar to Rabinovitch's informal comments, although a number of points made directly by Rabinovitch are dropped and some are added, and it includes replies to the text of the lawsuit point by point.

Before delving into the details of the case, the statement begins by saying that the lawsuit "was submitted in bad faith, and without legal or factual basis as a mere publicity stunt. As such, the plaintiff has widely publicized the lawsuit on Internet sites both in Israel and abroad." The statement goes on to say that the lawsuit did not follow "proper legal procedure" -- presumably a reference to the attempt to have the case settled as a short proceeding. Describing the case as "frivolous," the defendants threatens the possibility of countersuing for "serious damage to their good name and reputation." Surprisingly after this beginning, the statement later objects to "the coarse, inappropriate tone" of one item in the lawsuit, adding that "the court is requested to note its displeasure as well."

As a final preliminary, the statement also seeks to remove Rabinovitch as a defendant, arguing that he is "at most, a director" of IChessU and that, because "he is not a programmer" that he has "no relations to the claims in the lawsuit," as though only programmers could violate a license agreement.

Defence claims and the GPL

For most of the statement's length, its arguments implicitly or explicitly concern the GPL. Many of its statements seem direct contradictions of the GPL. These statements include:

• The claim that "'running the program' does not in any way require displaying the license." However, section 2c of the GPL states, "If the modified program normally reads commands interactively when run, you must cause it, when started running for such interactive use in the most ordinary way, to print or display an announcement including an appropriate copyright notice."
• The IChessU client uses the Jin software legally since, "as the license explicitly states, using the software requires no license." In fact, when section 0 of the GPL talks about running the program, it is referring to "Activities other than copying, distribution and modification" -- the issues that the case is about. Section 5 of the GPL makes clear that copying, modifying, or distributing GPL-licensed software is "prohibited by law if you do not accept the License."
• The IChessu software consists of the Jin software and a library that IChessu developed separately. These two pieces of software are described as two separate programs that do not communicate directly with each other, and can therefore have two separate licenses. Yet the download from the IChessu site includes both, and requires users to agree to an end-user license agreement (EULA) that, although listing Jin as not falling under the EULA still ties its use to the license. Not only does the EULA reserve the right to remove the exclusion, but the statement that a hardcopy version of the EULA takes precedence over any other means that deliberately or accidentally removing the exclusion would place Jin under the general EULA. Possibly, the library "can reasonably be considered independent and separate," under the definition in section 2 of the GPL, but the point is that the EULA, which is clearly non-free, appears potentially to cover Jin as well.
• Documentation copied by IChessu "are a non-protected description of method and process" -- a statement that would surprise most companies that distribute documentation. At any rate, because the documentation is distributed with Jin, it is also covered by the GPL as described in section 2, unless licensed separately under a GPL-compatible license.
• Maryanovsky cannot own the copyright to Jin. The statement of defence does not specify why, but presumably the reason is because the lawsuit acknwoledges that other sources of code were used in its creation.
• The only place where the statement of defence seems to interpret the GPL reliably is in the statement that the license does not prevent screen shots from being displayed on the IChessu site. These shots would likely fall under fair use. However, the importance of whether they were made while running the program illegally is another matter, and one that might be difficult to prove.

  The defence ends by calling for a complete dismissal of the plaintiff's case. If the case is settled by reference to the GPL, it seems that defence may carry one or two points, but has a strong chance of being found guilty of numerous other GPL violations. In particular, the defence repeatedly seems to ignore the GPL's terms for distribution, and to treat GPL-licensed software as being in the public domain, two misapprehensions that seem to greatly weaken its case.

  Outcome in doubt

  However, whether the case will be decided by reference to the GPL seems doubtful. Any analysis of the defence's claim in the case is difficult for several reasons. For one thing, some of Maryanovsky's original objections, such as the failure to preserve his copyright notice on the IChessu site, now seem to have been addressed.

  Still another difficulty is that, as the case continues, many details change -- whether deliberately or naturally is difficult to say. For example, whether Rabinovitch should be listed in the case depends upon his exact status. Currently, Rabinovitch, who has moved to Canada since the case began, is listed only as "Dean of a Faculty" on the IChessu site. Yet a few months ago, he was signing emails as "CEO of International Chess University," and the defence statement itself admits that he owns the domain name used by the company. Rabinovitch's exact status in the privately owned company at the time of the violation seems likely to become a major factor in determining whether he remains a defendant in the case, and it currently appears indeterminate.

  More importantly, although the defence's understand of the GPL seems minimal throughout the statement, probably what the defence would really like to do is have the GPL declared inapplicable under Israeli law. The statement claims that the the plaintiff's case depends on the concept of "derivative works" -- and that this is a concept derived from American law that is not recognized under Israeli law. This claim is based on the differences between Anglo-American and European-Israeli copyright jurisdictions, and is such a large issue that it is likely to form the basis of the case. It could be that, contrary to the defence statement, the concept of moral rights in the European tradition would actually increase a creator's control over derivative works -- but how it will play out is anybody's guess.

  Since both parties in the case seem relatively small, a settlement is not out of the question. Otherwise, however, the case raises so many technical arguments that it seems likely to drag on for months. Meanwhile, the free software communities will have to wait to see if the license that so many of its projects depend on will survive a challenge in Israeli court.

  Thanks to Alon Zakai for providing an English translation of the Hebrew Statement of Defence.

  Bruce Byfield is a computer journalist who writes regularly for NewsForge, Linux.com, and IT Manager's Journal.